Appeal from Victoria County.
Gene Douglass, Wichita Falls, for appellant.
Melvyn Carson Bruder, Sp. Prosecutor, Dallas, for the State.
Tom G. Davis, Dally and W. C. Davis, JJ.
This is an appeal from a conviction for the offense of murder under the former penal code. The appellant was indicted in Grayson County, but there was a change of venue to Collin County. A jury returned a death penalty verdict, the trial judge granted a new trial, and there was another change of venue to Victoria County. After a jury was impaneled in Victoria County the appellant's jury waiver was accepted and approved; the court heard the evidence, entered a judgment of guilty, and sentenced the appellant to life imprisonment.
The appellant asserts that he was denied his constitutional rights to a speedy trial and against unreasonable searches and seizures. He also asserts that the evidence is insufficient to sustain the judgment.
The determination of whether appellant was denied a speedy trial is complicated because of the two changes of venue and the new trial which he was granted. Furthermore, during the same time period the appellant was tried twice for another murder; there were two jury trials and a change of venue; these trials resulted in the assessment of substantial punishment, but both judgments were reversed on appeal. See Easley v. State, 493 S.W.2d 199 (Tex.Cr.App.1973); and Easley v. State, 529 S.W.2d 522 (Tex.Cr.App.1975).
The right to a speedy trial is guaranteed by the Sixth Amendment to the Constitution of the United States as applied through the Fourteenth Amendment. Klopfer v. North Carolina, 386 U.S. 213, 87 S. Ct. 988, 18 L. Ed. 2d 1 (1967); Smith v. Hooey, 393 U.S. 374, 89 S. Ct. 575, 21 L. Ed. 2d 607 (1969); Dickey v. Florida, 398 U.S. 30, 90 S. Ct. 1564, 26 L. Ed. 2d 26 (1970); Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972). The same right is assured by Art. I, Sec. 10 of the Texas Constitution, and Art. 1.05, V.A.C.C.P.
Whether an accused has been denied a speedy trial may be determined by a "balancing test" which was set out in Barker v. Wingo, supra. Each case requires consideration of the following factors, although they are not exclusive:
(1) the length of the delay;
(2) the reason for the delay;
(3) the defendant's assertion of the right; and
(4) the prejudice to the defendant resulting from the delay.
See also Moore v. Arizona, 414 U.S. 25, 94 S. Ct. 188, 38 L. Ed. 2d 183 (1973); Turner v. State, 545 S.W.2d 133 (Tex.Cr.App.1976); Wilkerson v. State, 510 S.W.2d 589 (Tex.Cr.App.1974); McKinney v. State, 491 S.W.2d 404 (Tex.Cr.App.1973).
There is no precise length of delay which irrefutably constitutes a violation of the right to a speedy trial in all cases. The length of the delay is measured from the time the defendant is formally accused or arrested. United States v. Marion, 404 U.S. 307, 92 S. Ct. 455, 30 L. Ed. 2d 468 (1971); Dillingham v. United States, 423 U.S. 64, 96 S. Ct. 303, 46 L. Ed. 2d 205 (1975). Five years elapsed from the time of the appellant's arrest until the time of his trial; that is certainly sufficient to require the application of the balancing test of Barker v. Wingo, supra, and that time must be considered in determining appellant's speedy trial claim.
We next consider the reasons for the delay; we are told that different weight should be assigned to different reasons. For example:
"A deliberate attempt to delay the trial in order to hamper the defense should be weighted heavily against the government (footnote omitted). A more neutral reason such as negligence or overcrowded court should be weighted less heavily but nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the government rather than the defendant. Finally, a valid reason, such as a missing witness, should serve to justify appropriate delay." Barker v. Wingo, supra, 92 S. Ct. at 2192.
Donna Golish disappeared on September 10, and her body was found on September 11, 1969. The appellant was arrested on April 8, 1970. On April 16, 1970, he was indicted for the murder of Donna Golish, and on the same day also was indicted for the murder of Laurie Stevens, who had been killed on April 1, 1970. On May 25, 1970, appellant was granted a change of venue to Wichita County in the Stevens case; trial commenced on July 6, 1970, and the appellant was convicted. On September 2, 1970, appellant was granted a change of venue to Collin County in the Golish case; trial commenced in March, 1971, and the appellant was convicted.
Appellant's conviction for the murder of Laurie Stevens was reversed on March 14, 1973. On September 12, 1973, appellant was granted a new trial in the Golish case. On March 18, 1974, the second trial of appellant for the murder of Laurie Stevens commenced in Wichita County, and appellant again was convicted. On April 8, 1975, appellant was granted a change of venue to Victoria County for his second trial for the murder of Donna Golish; trial commenced on April 21, 1975, and appellant again was convicted. This appeal is from that conviction.
On July 6, 1970, appellant filed a motion for a continuance in the first trial of the Stevens case, and the motion was overruled. On December 31, 1970, appellant filed a motion for a continuance in the first trial of the Golish case; the record does not reflect that the motion was ruled on by the court. On September 17, 1973, appellant filed a motion for a continuance in the second trial of the Stevens case, and the motion was granted.
It is apparent that the delay of which appellant complains was occasioned in substantial part by his two trials for the murder of Laurie Stevens and the pendency of his appeals from those convictions. That the appellant was being prosecuted on other charges constitutes a valid reason for the delay in bringing him to trial. See Black v. State, 505 S.W.2d 821 (Tex.Cr.App.1974); Turner v. Estelle, 515 F.2d 853 (5th Cir. 1975); United States v. Kress, 451 F.2d 576 (9th Cir. 1971); United States v. Holt, 145 U.S.App.D.C. 185, 448 F.2d 1108 (1971).
Appellant was charged with the separate murders of two young girls. Both cases were based on circumstantial evidence. Detailed scientific analysis of the evidence, including ballistics tests and neutron activation analysis, was required; some of the evidence was sent to Washington, D. C. for examination. Both the seriousness and the complexity of the charges are to be considered in evaluating a defendant's speedy trial claim. Barker v. Wingo, 92 S. Ct. at 2192; see United States v. Bloom, 538 F.2d 704 (5th Cir. 1976), cert. denied, 429 U.S. 1074, 97 S. Ct. 814, 50 L. Ed. 2d 792 (1977); United States v. Baumgarten, 517 F.2d 1020 (8th Cir. 1975), cert. denied, 423 U.S. 878, 96 S. Ct. 152, 46 L. Ed. 2d 111 (1976).
The appellant first asserted his right to a speedy trial on July 21, 1976, more than a year after he was brought to trial. This is not a timely assertion of the right. See Thomas v. State, 530 S.W.2d 834 (Tex.Cr.App.1975); Archie v. State, 511 S.W.2d 942 (Tex.Cr.App.1974); McCarty v. State, 498 S.W.2d 212 (Tex.Cr.App.1973); Haas v. State, 498 S.W.2d 206 (Tex.Cr.App.1973). The right to a speedy trial applies to neither delays in sentencing, Ramos v. State, 486 S.W.2d 297 (Tex.Cr.App.1972), nor ...